State by Public Prosecutor v. Devarajan — 1989 DIGILAW 346 (MAD)

Judgment : This is a revision preferred by the State represented by the learned Public Prosecutor challenging the order dated 23.1984 made in Special Case No.1 of 1983 by the Chief Judicial Magistrate and Special Judge, Pudukkottai disallowing the prosecution from exhibiting the “entrustment mahazars” on the ground that such exhibition was banned by the provisions of Sec.162, Cr.P.C. 2. A few facts concerning this prosecution will be necessary for the disposal of this petition. The respondents are accused 1 and 2 in Special Case No.1 of 1983 on the file of the lower court. The first respondent at the relevant time was the Revenue Inspector, Siththannavasal Firka, Kolathur Taluk, Pudukottai District and the second respondent was then the thalayari of Annavasal Vattam, Kolathur Taluk. While holding such official position the first accused (first respondent) is said to have demanded a sum of Rs.250 as illegal gratification other than legal remuneration, from Thiru Kumaran examined as P.W.1, on 115.1982 at about 8 P.M. at Annavasal as a motive or reward for making recommendations on the application of Kumaran for the issue of solvency certificate by the Tahsildar, Kolathur. A1 further directed Kumaran to pay the sum demanded to A2, who was also present then and who also insisted, on such payment being made. In pursuance thereof, it is alleged, that on 27.5.1982 at or about 8.15 AM. at the Revenue Officer’s office at Annavasal, A1 accepted Rs.250 from Kumaran through A2. The prosecution is for offences punishable under Sec.161, I.P.C., Sec.165-A, I.P.C., and Sec.5(2) read with Sec.5(1)(d) of the Prevention of Corruption Act. 3. The Special Judge framed three charges against the respondents on 29.11.1983. The first charge was against the first respondent for an offence under Sec.161, I.P.C., while the second charge was against the second respondent for an offence under Sec.165-A, I.P.C. The third charge was against both the respondents for an offence under Sec.5(2) read with Sec.5(1)(d) of the Prevention of Corruption Act. 4. When the respondents were questioned on the charges framed, they pleaded not guilty. On 2.3.1984 Thiru Kumaran was examined as P.W.1. 4. When the respondents were questioned on the charges framed, they pleaded not guilty. On 2.3.1984 Thiru Kumaran was examined as P.W.1. During the course of his chief-examination, while deposing to the facts he stated that at the office of the Vigilance Inspector, on 26.5.1982 at or about 4.30 P.M., he was introduced by the Vigilance Inspector, to thiru Chelliah and Thiru Somasundaram, who were stated to be working in the Public Works Department and Forest Department respectively. The complaint preferred by him against the respondents to the Vigilance Inspector, was read by those two officials. Those two officials questioned him about the truth of its contents. Later the Inspector took Rs.250/-from him in the denomination of Three 50 rupee notes and five 20 rupee notes. The usual procedure adopted for demonstrating the phenolpthalene test was done to apprise him and officials about the change of colouration of water when the currency notes treated with phenolpthalene powder were handled. After such demonstration the currency notes were handed over to him and the entrustment mahazar was prepared detailing the procedure adopted in the vigilance Office for demonstration, and also containing the numbers of the currency notes. In the mahazar he and the two officials have signed. That entrustment mahazar was sought to be marked by the prosecuting counsel through P.W.1 and such marking was objected to by the counsel appearing for the defence, on the ground that the mahazar was hit by the provisions of Sec.162, Cr.P.C. The objection was upheld by the judge. It appears that the prosecuting counsel submitted, that the portion of the mahazar containing the numbers of the currency notes alone, could be marked, which was also not acceded to by the Court below, since it was also viewed as a part of the statement, contemplated under Sec.162, Cr.P.C. 5. Thiru Kumaran continued in depose in Court that the first respondent who was not available at his office or residence initially on 26.5.1982 had latter directed P.W.1 to meet him the next day with the bribe amount, since several forms had to be filled up. Hence the trap was dropped and refixed for the next day. Thiru Kumaran continued in depose in Court that the first respondent who was not available at his office or residence initially on 26.5.1982 had latter directed P.W.1 to meet him the next day with the bribe amount, since several forms had to be filled up. Hence the trap was dropped and refixed for the next day. In pursuance thereof P.W.1 reached the office of the Vigilance Inspector at 6 A.M. The next day when the Vigilance Inspector gave him Rs.250 which was taken back by the Inspector the earlier night and the same process of smearing of phenolpthalene on the currency notes was done and the entrustment mahazar of what happened on the second day was prepared and signed by both the officials and P.W.1. When this mahazar was sought to be marked, for the same reason stated earlier, the Special Judge did not permit the prosecution to exhibit this document. Subsequently at the request by the prosecuting counsel the further examination of P.W.1 was postponed. 6. The order of the Special Judge, refusing permission to mark these two entrustment mahazars, is challenged in this revision. 7. Mr.A.S.Chakravarthi, learned Government Advocate appearing on behalf of the petitioner, contends that the pre-trap and post-trap mahazars are not hit by Sec.162, Cr.P.C., since they are not in the nature of the statements communicated to the police officers but are merely a contemporaneous record of what the witnesses had been and heard. It was further contended that the documents were admissible under Sec.157 of the Indian Evidence Act. It was finally contended that the trial court was wrong in assuming that the documents were hit by Sec.162, Cr.P.C. even without adverting to the nature of statements found in the mahazars, and passing a bald order without any discussion. 8. Per contra, Thiru T.Nunirathina Naidu, learned counsel for the respondents, submitted that this revision was not maintainable in view of the bar under Sec.397(2), Cr.P.C., for, an order as to the admissibility, is an inter-locutary order. He also contended that the contents of the mahazars sought to be marked contained statements which amounted to a narration to a police officer during his investigation and atleast a part of the mahazar would fall within the sweep of Sec.162, Cr.P.C., and may have to be excluded. He referred to Indranath Guha v. State of West Bengal, 1979 Crl.L.J. (N.O.C.) 129, to lend support to his contention. He referred to Indranath Guha v. State of West Bengal, 1979 Crl.L.J. (N.O.C.) 129, to lend support to his contention. The admissibility of the entrustment mahazars in the pending trial and when the ban in Sec.162, Cr.P.C., comes into operation have to be determined in this revision. In Madhu Limayee v. State of Maharashtra, A.I.R. 1978 S.C. 48, the Apex Court has authoritatively enunciated as follows: “On the one hand the legislature kept intact the revisional power of the High Court and on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression interlocutory order” as invariably being converse of the words “final order. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami’s case, A.I.R. 1949 F.C. 1, but, yet it may not be an interlocutory order..pure or simple. Some kinds of order may fall in between the two. By a rule of hormonious construction, we think that the bar in Sub-sec.(2) of Sec.397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Art.134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory order within the meaning of Sec.397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final and then to prepare and exhaustive list of those: types of orders which will fall in between the two. The first two kinds are well known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-sec.(2) of Sec.397. The first two kinds are well known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-sec.(2) of Sec.397. In our opinion it must be taken to be an order of the type falling in the middle course”.....Yet, for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order with in the meaning of Sec.397(2). Applying the said principle, the order made by the Special Judge can be stated to be conclusive with reference to the stage at which it is made. Obviously this revision can be maintained and the first ground of objection has to necessarily fail. 9. Even in Indranath Guha’s case, 1970 Crl.L.J. (N.O.C.) 129, referred to by the learned counsel for the respondents, the exercise of revisional powers in exceptional cases, where there has been flagrant miscarriage of justice, has been preserved. In any event, the exercise of the inherent powers under Sec.482, Cr.P.C., cannot be barred. 10. The question to be decided next will centre round the essential purpose for which the mahazars are prepared. The mahazars are made during the course of investigation of offences either under the Indian Indian Indian Penal Code or other special enactments, based on the provision’s of the Criminal Procedure Code. Sections 103 and 174, Cr.P.C., deal with preparation of mahazars by police during the course of investigation of on offence. The mahazar contemplated under Sec.103, Cr.P.C., relates to a search and seizure of articles made during the search, which, in law, will have to be done in the presence of two or more respectable inhabitable of the locality in which the place to be searched is situated. The latter provision relates to the preparation of observation mahazars, seizure mahazars etc. These two sections are not exhaustive of the occasions who mahazars are made by the police during investigation of an offence and catalogue of the several feasible mahazars, may not have to be listed. The latter provision relates to the preparation of observation mahazars, seizure mahazars etc. These two sections are not exhaustive of the occasions who mahazars are made by the police during investigation of an offence and catalogue of the several feasible mahazars, may not have to be listed. However, in cases instituted under the Prevention of Corruption Act a pre-trap mahazar and a post-trap mahazar are commonly prepared. The real purposes these mahazars, to extract the words of Chief Justice Beamount in Emperor v. Mohanlal, 42 Crl.L.J. 556, is, “The panchanama is merely a record of what a panch sees, and the only use to which it can properly be put is that when the panch goes into the witness box and swears as to what he saw, the panchanama can be used as a contemporary record to refresh his memory”. 11. Therefore, it is clear that the primary and essential purpose of making mahazars is to prepare a record of things which occur in the presence of the mahazar witnesses and which were seen and heard by them. The purpose is never to convey or impart knowledge to the police officer about the things that are seen or heard by them. The other purpose which they serve is to facilitate the mahazar witnesses to refresh their memory when they enter into the witnesses box to depose about the things which they had seen and heard. The contemporaneous record prepared at or about the time when the witness had seen and heard certain things serves the purpose of corroborating their evidence given at the trial. It can admit of no doubt that such mahazars cannot be treated as substantive evidence but they can be used to corroborate substantive evidence of the witness given during trial. The use of such a contemporary record, being in the nature of previous statement made by the mahazar witness, for corroborating the evidence of such witness, is certainly valid under Sec.157 of the Indian Evidence Act. 12. The use of such a contemporary record, being in the nature of previous statement made by the mahazar witness, for corroborating the evidence of such witness, is certainly valid under Sec.157 of the Indian Evidence Act. 12. Let us now consider the provisions of Sec.162, Cr.P.C., which reads as hereunder: “Statements to Police not to be signed: Use of statements in evidence: (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it: nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement” or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by Sec.145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross examination. (2) Nothing in this section shall be deemed to apply to any statement falling with in the provisions of Clause (1) of Sec.32 of the Indian Evidence Act,1872, or to affect the provisions of Sec.27 of that Act. EXPLANATION-An omission to state a fact or circumstance in the statement referred to in sub-section(1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to contradiction in the particular context shall be a question of fact. The two essential requisites to attract the provisions of Sec.162, Cr.P.C., are: (a) TheStatement must be made to a police officer; and (b) It must bein the course of an Investigation. The two essential requisites to attract the provisions of Sec.162, Cr.P.C., are: (a) TheStatement must be made to a police officer; and (b) It must bein the course of an Investigation. Unless the mahazar prepared amounts to statement made to a police officer within the meaning of Sec.162, Cr.P.C., it will not fall within the ban contained therein. It cannot be disputed that Sec.157 of the Indian Evidence Act is controlled by Sec.162, Cr.P.C., which is a special provision and hence if statements though falling under Sec.157 of the Indian Evidence Act were also to fall under Sec.162, Cr.P.C., such statements would become inadmissible and could be made use of only for contradicting the witness after following the procedure indicated in Sec.147 of the Indian Evidence Act. it is better, at this stage, to extract Sec.157 of the Indian Evidence Act: “Former statement of witness may be proved to corroborate later testimony as to same fact. In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place or before any authority legally competent to investigate the fact, may be proved”. Reading Sec.157 of the Indian Evidence Act and Sec.162 of the Criminal Procedure Code together it is patent that the expression “Statement” in Sec.157 has a wider connotation than in Sec.162, Cr.P.C. “Statement” occurring in Sec.162, Cr.P.C. necessarily means a narration. This narration connotes address to that person and implies an animus or intention to communicate the subject matter of the statement to such person. Sec.161, Cr.P.C., empowers any police officer making investigation under Chapter XII to examine orally any person supposed to be acquainted with the facts and circumstances of the case. It is in regard to the examination or such person the police officer reduces into writing the statement made to him in course of such examination under Sec.161, Cr.P.C. Therefore, the ban contemplated under Sec.162(1), Cr.P.C., will get imposed to the category of statements recorded under Sec.161, Cr.P.C. which denote an intention to communicate. 13. It is in regard to the examination or such person the police officer reduces into writing the statement made to him in course of such examination under Sec.161, Cr.P.C. Therefore, the ban contemplated under Sec.162(1), Cr.P.C., will get imposed to the category of statements recorded under Sec.161, Cr.P.C. which denote an intention to communicate. 13. The question to be considered now is, whether the recitals which are contained in the pre-trap mahazar, which is the subject-matter of dispute in this prosecution, constitute statements made to the police officer in the sense that they were intended to be communicated to the police officer, who is investigating the offence in question, or whether these amount to record of things seen and heard by witnesses intended to serve as an aid to refresh their memory, and the contents thereof could be used by way of corroborative evidence to support the substantive evidence given by those witnesses at the trial. 14. Keeping in view the primary and essential purpose for which these mahazars, are prepared it is not possible to come to the conclusion that there is an element of communication, i.e., an intention to communicate to the police officer, the subject-matter of the things seen and heard by the witnesses, which are recorded and form the subject-matter of these documents. There is a clear distinction between a narration made to the police officer with a view to communicate or impart knowledge of the subject matter of a narration and a mere record of what the mahazar witnesses had seen and heard, which is primarily intended to serve as a contemporaneous record and further serve to corroborate the substantive evidence given during trial. The entrustment mahazar usually contains recitals of repetition of the story by the complainant to the witnesses, production of the currency to be offered as bribe, demonstration of the phenolpthalene test and instructions to the complainant to hand over the amount to the accused only when demanded. The entrustment mahazar usually contains recitals of repetition of the story by the complainant to the witnesses, production of the currency to be offered as bribe, demonstration of the phenolpthalene test and instructions to the complainant to hand over the amount to the accused only when demanded. These statements, which are morally found in a pre-trap mahazar, in my view, cannot be regarded as amounting to any statement made by any person to a police officer to attract the ban contained in Sec.162, Cr.P.C. Of course, if a mahazar incorporates a statement, which amounts to a narration to a police officer during investigation, it may fall within the contemplation of Sec.162, Cr.P.C., and may have to be excluded, but, that duty will have to be performed by the trial Court, every time the mahazar is tendered in evidence. That part may have to be excluded, but, the rest of the recitals will not attract the ban contained is Sec.162, Cr.P.C. 15. A similar point arose for consideration before the Full Bench of the Bombay High Court in Vishnu Krishna Belurkar And Another v. The State of Maharashtra, 1975 Crl.L.J. 517, wherein the view taken, fully corresponds with the opinion expressed by me in this revision. The Bombay High Court has considered several rulings while arriving at its conclusion and I respectfully agree with the law laid down by the Full Bench and hold that the mahazars, sought to be marked in this prosecution are admissible, as indicated above, and their being exhibited, cannot be prevented, in law. 16. In respect of the second objection put forth by the learned counsel for the respondents I have already held that any part of the mahazar which would amount to a statement intended to be communicated to the police officer, would certainly be barred and hit by Sec.162, Cr.P.C., and that part of the mahazar will have at be excluded. That will be the duty of the trial court, to eschew such part of the mahazar, which is hit by Sec.162, Cr.P.C., while considering the evidence adduced. The order of the Special Judge is unsustainable and is hereby set aside. The revision petition is allowed. The Special Judge is directed to give top priority for this trial and dispose it of in accordance with the law as expeditiously as possible.